Harrison v. Nawrot, 2024 BCPC 22

Citation: Harrison v. Nawrot 2024 BCPC 22 Date: 20240214 File No: C-24899 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: MARIE HARRISON CLAIMANT AND: K.I.T. NAWROT DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. ORMISTON Appearing on her own behalf: M. Harrison Counsel for the Defendant: D. Robertson Place of Hearing: Abbotsford , B.C. Dates of Hearing: September 20, 21, and 22, 2023

Date of Judgment: February 14, 2024 Overview [ 1 ] Marie Harrison has filed a notice of claim seeking the maximum allowable compensation under the Small Claims Act from her former dentist Dr. Kyle Nawrot. This is a case about a woman who has unfortunately suffered serious pain and suffering related to dental work done by Dr. Nawrot. [ 2 ] Ms. Harrison described months of physical misery including not being able to properly eat and having teeth so unsightly that she isolated herself from everything except going to work. She says Dr.

Nawrot was obstructive when she tried to obtain her dental records so that her new dentist could fix her teeth. She became extremely ill after taking medication that Dr. Nawrot prescribed to her. She says he performed negligent dental work and work to which she had not consented, and that her teeth have been sensitive ever since. She believes he did more work than was prudent or necessary simply because her health benefits were robust. She feels violated and frightened about how she was treated while in Dr.

Nawrot’s care, and believes that she was sedated in ways that were detrimental to her physical health and safety. Ms. Harrison’s emotional anguish persists to this day. Ms. Harrison reported her concerns about Dr. Nawrot to the B.C. College of Oral Health Professionals (the “College”). [ 3 ] In order to be compensated for harm, Claimants, like Ms. Harrison, must establish on a balance of probabilities that the harm they suffered was caused by the Defendant breaching a duty of care owed to them. Dr. Nawrot has made several admissions of professional misconduct in relation to his treatment of Ms.

Harrison that accord with admissions he made in the College complaint. Namely, that he: 1. Failed to respond to communications from the College in a timely or responsive manner; 2. Provided treatment that fell below the College’s expected standards by providing extensive and comprehensive restorative treatment in a single session rather than coordinating the care over multiple sessions; 3. Provided treatment that fell below the College’s expected standards by performing restorative treatments in a fashion that was not supported by the records and by removing tooth structure that was excessive in several teeth; 4.

Billed for treatment when the need for the treatment was not supported by records; 5. Provided treatment without having sufficiently documented valid informed consent per the College’s standard for record-keeping, and; 6. Failed to maintain adequate patient records per the College’s standard for record keeping, including by failing to record diagnostic testing before treatment, failing to record sufficient details of diagnosis, and failing to record sufficient details of care provided for the purpose of billing. [ 4 ] Ms. Harrison was self-represented at this trial. She struggled to advance her case.

As many understandably do, she found testifying difficult and was often overcome with emotion about the harm she has suffered. She is not a legal expert, and was unfamiliar with the rules around leading expert evidence, which she tried unsuccessfully to do in this case. While she had a letter from her new dentist that apparently detailed several ways in which Dr. Nawrot failed her, that was not marked as an exhibit and I cannot rely on it in making a decision about her claim. The outcome of this trial may have been quite different if Ms.

Harrison’s complaint had been presented to its fullest extent, however this Court can only make decisions based on admissible evidence led by the parties at trial – and that is what I will do here. Issues [ 5 ] Ms. Harrison’s claim is presented as a narrative of events as opposed to being framed as specific legal actions. She does not describe the precise pathway for her to be awarded compensation. This is not uncommon in Small Claims Court, which is meant to be a forum for efficient resolution of disputes involving litigants who are usually not represented by counsel. The factual scenario Ms.

Harrison presents in her claim and in her evidence at trial gives rise to at least two avenues for relief in this Court: i. that Dr. Nawrot acted negligently in administering dental care to Ms. Harrison, and ii. that Dr. Nawrot committed the torts of assault and battery on Ms. Harrison by performing dental procedures without her consent. [ 6 ] The Defendant stands by his admissions of fact, but submits that any negligence arising from his conduct is not compensable because Ms. Harrison has failed to establish or quantify damages. While there was no evidence led by the Defendant, he also submits Ms.

Harrison has not established a lack of consent to the procedures he performed. [ 7 ] The onus is indeed on Ms. Harrison, to establish any torts arising from the incidents she described. If findings are made in her favour regarding this claim, the burden is also on her to establish on a balance of probabilities an entitlement to damages and the amount. Negligence [ 8 ] It is not in dispute that Dr. Nawrot is a dentist who performed work on Ms. Harrison’s teeth on March 12 and 18, of 2021. [ 9 ] Dr. Narwot’s admissions of fact combined with Ms .Harrison’s testimony is sufficient to establish that Dr.

Nawrot was negligent

in his treatment of Ms. Harrison. It is the extent of his negligence that is at issue. [ 10 ] Ms. Harrison makes multiple claims that the dental work Dr. Nawrot performed on her was deficient. This includes allegations regarding the bridge he tried to repair on March 12 which left her teeth so misaligned that she could not properly eat; medication she was prescribed by Dr. Nawrot which she believes led her to suffer a serious infection; and “over-sedation” during her procedures. [ 11 ] A claim of negligence requires a Claimant to establish the Defendant has breached a duty of care owed to them. Dr.

Nawrot undoubtedly owed Ms. Harrison a duty of care, however in cases such as this involving medical procedures, the question of whether the Defendant fulfilled their duty of care often requires expert evidence. For reasons I will detail below, I accept and believe Ms. Harrison’s evidence about her terrible experiences while under Dr. Nawrot’s care. However, to establish her claim Ms. Harrison must prove that the harm she suffered was a result of Dr. Nawrot’s negligence. Her concerns about the medication and sedation require an understanding of pharmaceuticals that is beyond the experience of this Court.

Without an expert I cannot find on the evidence tendered at trial that Dr. Nawrot’s negligence caused the harm described by Ms. Harrison. [ 12 ] With respect to Ms. Harrison’s concerns about the bridge Dr. Nawrot tried to fix on March 12, there is evidence before the court that this procedure was quite invasive. It appears to have involved root canal procedures on multiple teeth. While Ms.

Harrison did not describe the precise medical procedure performed, she agreed with Defendant’s counsel that the document titled “Root Canal Therapy (RCT) Consent” (entered as Exhibit 4) was signed by her before the March 12 treatment. This document details significant potential risks to the patient including swelling, bruising, sensitivity, bleeding, pain, loosening of teeth, delayed healing, and treatment failure. I take it from this document that even if a dentist acts diligently these consequences could still result. [ 13 ] While the condition of Ms.

Harrison’s teeth after the March 12 appointment sounds quite extreme, I cannot say it falls outside of the potential risks identified in the consent form that Ms. Harrison agrees she signed. It may be that Dr. Nawrot’s work from March 12 was negligent, but I cannot make that finding without guidance from an expert who could explain whether the outcomes for Ms. Harrison could have happened regardless of whether Dr. Nawrot performed his work according to acceptable standards of care. [ 14 ] It is clear that Ms. Harrison wanted to rely on hearsay evidence from the dentist who repaired some of the work done by Dr.

Nawrot, however for the reasons explained at trial this evidence is inadmissible. If Ms. Harrison had called this dentist as a qualified expert witness, she may have had a foundation to advance the full extent of her claims regarding sedation, the bridge work and medication she was prescribed by Dr. Nawrot. [ 15 ] I have also considered Dr. Nawrot’s admissions of professional misconduct. Admissions of this sort allow me to find that Dr. Nawrot breached a duty of care to Ms. Harrison, however some of the admissions are not entirely clear. For example, the fact that Dr.

Nawrot billed for treatment when the need for treatment was not supported by records’ may be consistent with Ms. Harrison’s belief that Dr. Nawrot did unnecessary work on her teeth, but there is room for other

interpretations. Without further explanation, it is unclear whether Dr. Nawrot billed for treatment that was not required, or whether he billed for required treatment but failed to keep proper records to show why the treatment was required. [ 16 ] A similar issue arises with respect to Dr. Nawrot’s admission that he failed to keep adequate records about diagnostic testing, diagnosis, and details of care. While these admissions are relevant to assessing what kind of weight can be attributed to documents generated by Dr.

Nawrot, they do not on their own prove that he was negligent in the testing, diagnosis and care that was provided, with the exception of two specific treatments Dr. Nawrot admits fell below the College’s expected standard of care. Those were: i. performing extensive and comprehensive restorative treatment in a single session rather than coordinating the care over multiple sessions; and ii. performing restorative treatments in a fashion that was not supported by the records and by removing tooth structure that was excessive in several teeth.

Again, it is not clear whether performing restorative treatments in a way that was not supported by the records is an admission that Dr. Nawrot had no basis to perform such work. But it is clear that he fell below his expected standard of care by removing excessive tooth structure in several of Ms. Harrison’s teeth. [ 17 ] On the basis of these admissions and the evidence of Ms. Harrison, I do find Ms. Harrison has established Dr. Nawrot breached a duty of care owed to her as his patient. However, she must go on to also establish that as a result of that breach she was caused harm. Ms.

Harrison has not established financial loss for the limited negligent conduct that I have found here. All of the dental work performed by Dr. Nawrot was covered by her health care benefits, other than $3,152.95, which she has not paid. [ 18 ] With respect to Dr. Nawrot performing extensive treatments in a single session, there is no evidence to assist the court in making findings that Ms. Harrison was physically harmed by the fact that the treatments were not broken down into shorter appointments. It is implicit in Dr. Nawrot’s admissions of misconduct that Ms.

Harrison could have been harmed by the way he performed these treatments, but luckily she was not. Ms. Harrison’s belief that she was “over-sedated” has not been confirmed by expert evidence. While her recovery was not easy, without expert evidence I cannot determine the extent to which Dr. Nawrot’s negligence in performing such lengthy treatments was a factor, or the extent to which it was a factor. [ 19 ] However, Ms. Harrison has given ample evidence of emotional harm arising from the lengthy procedures Dr. Nawrot conducted. In particular, Ms.

Harrison describes ongoing nightmares, stress and worsening anxiety that have continued for more than two years, persisting through to the trial in 2023. Ms. Harrison gave uncontradicted evidence that the treatments on both March 12 and 18 were supposed to be a few hours and ended up taking more than eight hours each. I am satisfied that Dr. Nawrot’s admission regarding performing extensive treatments in a single session applies to the appointments on both dates. However, I am mindful that the majority of the harm described by Ms. Harrison arose as a result of the treatment on March 18.

This is because she also alleges that Dr. Nawrot performed some these extensive procedures without her consent. [ 20 ] Ms. Harrison testified that she agreed to have three teeth fixed on March 18, and that instead Dr. Nawrot worked on 22 of her

teeth. She agonizes over wondering what could have happened during the lengthy period of time in which she remembers almost nothing due to being sedated. The fact that the unauthorized work took so long is inextricably linked to the negligence established by Ms. Harrison. As she repeatedly and clearly said at trial, she never would have consented to such extensive work being done in one sitting. [ 21 ] Dr. Nawrot did not testify in these proceedings, however counsel suggests Ms. Harrison wanted to have all this dental work done at once before her dental benefits expired.

She agreed that she likely would have consented to all of this work being done, just not all in one sitting. This is not fatal to a claim that Dr. Nawrot was negligent in performing such extensive treatment on March 18, in fact it underscores the faith Ms. Harrison had in him as a professional. [ 22 ] Even if there were evidence that Ms. Harrison had consented to the full extent of the work done on March 18 th , there is no evidence that Dr. Nawrot informed Ms. Harrison of any risks involved in doing such extensive treatment in one session. Dr.

Nawrot had an obligation to act in accordance with his professional standards. He admits that the treatment he delivered fell short of these expectations. I find that Ms. Harrison has established that Dr. Nawrot’s negligence in performing such extensive treatments breached a duty of care that caused her harm. How much of that harm was attributable to his negligence as opposed to some of the work being unauthorized will be an issue for quantification of damages. [ 23 ] With respect to the second admission amounting to negligence, that is removing excessive structure from Ms. Harrison’s teeth, Ms.

Harrison listed the precise teeth identified by the College as having been subject to this treatment. They are consistent with the medical consent alleged to be from the March 18 appointment. However, with respect to this negligent work I cannot find that Ms. Harrison has established harm that goes beyond playing a limited role in the emotional pain and suffering that she attributes to her entire experience with Dr. Nawrot. [ 24 ] Ms. Harrison testified that almost all of her teeth have been sensitive since about a week after her first visit to Dr.

Nawrot on March 12, which would be the day or so after her March 18 appointment. I accept Ms. Harrison’s evidence on this point. While counsel suggests her evidence is unreliable because of her alleged gum disease or the fact that records from her subsequent dentist do not include reference to her teeth being sensitive, none of this detracts from the force of Ms. Harrison’s reliable evidence. There is no expert opinion before the court that Ms. Harrison suffers from any other condition that would cause tooth sensitivity, and the fact that Ms.

Harrison’s current dentist did not record her complaint in his notes has little weight without him being called as a witness. [ 25 ] The issue that remains for Ms. Harrison’s claim is that there is no expert evidence before me to say that sensitivity can result from excess tooth structure being removed. While this comes very close to a common sense inference that I might have been prepared to make, the Root Canal Therapy (RCT) Consent form, referenced earlier, from the March 12 procedures includes tooth sensitivity and permanent numbness and/or tingling as a possible but unlikely risk of the procedure.

Without more detailed and potentially expert evidence about the causes of Ms. Harrison’s tooth sensitivity, I am unable to find that Ms. Harrison has established physical harm resulting from Dr. Nawrot’s negligent removal of her tooth structure. Assault/Battery [ 26 ] With respect to the March 12 treatment, Ms. Harrison was somewhat unclear about the extent of the work that was supposed to be done by Dr. Nawrot that day. Ultimately she agreed that she had consented to Dr. Nawrot “doing whatever needed to be done” to fix her bridge. I do not find Ms.

Harrison has established that any unauthorized work was done on March 12. Ms. Harrison did say that she had not fully reviewed or understood the consent form that was presented to her at trial, which could potentially raise additional claims of negligence. However, this was not clearly part of the claim. In any event, I would have found that further evidence about informed consent would have been required. [ 27 ] With respect to the March 18 treatment, Ms. Harrison testified that when she attended her appointment she understood Dr. Nawrot would be working on three of her teeth that needed fillings repaired.

Instead, she says Dr. Nawrot worked on 22 of her teeth without her consent. She surmises he did so once he discovered that a combination of her benefits and her husband’s benefits would cover the total cost of the work he performed. She was forthright in saying she wanted to have all the teeth that required fixing fixed, but she was adamant and steadfast under cross-examination that she did not did not want them all fixed in one sitting.

She fairly concedes that she has extremely limited memories about what happened once she was under sedation, but proper consent could not have been obtained at that time in any event. She also conceded that she gets very nervous and anxious attending at the dentist and that she would have been in that state when she attended to Dr. Nawrot’s clinic on March 18. [ 28 ] I accept Ms. Harrison’s evidence regarding her lack of consent to 19 of her teeth being treated by Dr. Nawrot on March 18. I find her evidence to be both reliable and credible. Ms.

Harrison was a fragile witness for whom the events in question were emotionally charged. Any internal inconsistencies in her evidence were not indicators of issues with her credibility, rather they were minor and related to her disorientation being asked about medical concepts or matters beyond her experience. She was not impeached on inconsistencies between her evidence and other prior statements or reliable evidence from external sources.

I cannot find her nervous demeanour detracts from the reliability of her testimony that she did not provide consent to the full extent of the treatment that day, particularly since there was no reliable evidence given that she had in fact discussed and consented to the full extent of the treatment performed. Finding that she did consent and simply does not recall doing so because of her anxiety would be purely speculative and finds no support in the evidence that I do accept. [ 29 ] Counsel made attempts to impugn Ms. Harrison’s credibility or reliability based on information in Dr.

Nawrot’s clinic records and other documents allegedly relating to her treatment. However, particularly in the absence of any evidence from Dr. Nawrot about those documents, none of this detracted from the firmness of Ms. Harrison’s position that she had not consented to 22 teeth being treated in one sitting. I have borne in mind in considering alleged inconsistencies between Ms. Harrison’s testimony and the clinic records that the clinic records are not reliable proof for the truth of their contents. First, because Dr. Nawrot was not cross examined about these records; and second, because Dr.

Nawrot has admitted to being such a poor record keeper that he has committed multiple breaches of his professional expectations to record details about the treatment he performed on Ms. Harrison, the reasons for it, and whether or not she gave informed and voluntary consent.

[30] Ms. Harrison’s testimony about the extent of the work that was performed and the protracted period of time it took to accomplishthis work is corroborated by external evidence, including the records that were kept by the Defendant. Ms. Harrison was unable toidentify precisely which three teeth she had authorized Dr. Nawrot to fix on March 18, but this does not detract from the credibility orreliability of her evidence. In my view this detail is unlikely to be something a lay-person would know. It is not essential to the claimfor Ms. Harrison to identify precisely which teeth she did not consent to have fixed.

It is sufficient that she has established that the natureof the work done went beyond that to which she had given consent. I am prepared to find, even without expert evidence, that treating 22teeth as opposed to three teeth is a qualitatively different type of procedure. [31] Ms. Harrison’s feeling that it was inappropriate for so much work to be done in one sitting is consistent with the admission madeby Dr. Nawrot that his treatment of Ms. Harrison fell below professional expectations because he did extensive and comprehensiverestorative treatment in a single session. There is an internal consistency to Ms.

Harrison’s evidence that she would never have agreed tohave 22 teeth fixed in one sitting, or to be sedated for eight hours to accomplish this task. This makes logical sense. [32] Ms. Harrison’s evidence that she had not agreed to the extent of the work performed by Dr. Nawrot is also consistent with theevidence of her husband Daniel Harrison. While I’m mindful that Mr. Harrison is hardly an “independent” witness, I do find he gavetrustworthy and consistent evidence about when Ms. Harrison was dropped off at the dental clinic, and when he was finally able to bringher home.

His evidence about these timelines is consistent with the video evidence and the clinic records. [33] Mr. Harrison says Ms. Harrison was dropped off at Dr. Nawrot’s clinic around 12 p.m. and she told him he could pick her up at 3p.m. Mr. Harrison started contacting the clinic at around 2:30 p.m. to see if Ms. Harrison was ready and was told to check back in anhour. He attended at approximately 4 p.m. and was told again it would be another hour. Mr. Harrison repeated this process regularlywith the staff, asking why the appointment was taking so long. The only response given was that Dr.

Nawrot was working on 19 of 22teeth. While Mr. Harrison agrees that he did not tell the receptionist to stop the treatment, he was firm in his belief that Ms. Harrisonnever would have agreed to fix 22 teeth in one session, particularly since she’s “terrified” of dentists. By 6:30 p.m. he was pacing thehallway by the clinic. At 7 p.m. the staff told him he could bring his car around to pick up Ms. Harrison. Now unable to enter the closedmall, Mr. Harrison sat waiting in the parking lot, until 8:23 p.m. when Dr. Nawrot wheeled Ms. Harrison out of the mall. [34] Mr.

Harrison’s explanation about how he became annoyed, panicked, afraid and then ultimately angry with how long Ms.Harrison was being held in the clinic is consistent with Ms. Harrison expecting and consenting to less work than was actuallyperformed. Mr. Harrison’s evidence about his anger and fear about why Ms. Harrison was inexplicably detained in Dr. Nawrot’s officeis corroborated by the video recording he tendered, the existence and content of which are a clear demonstration of his emotions at thetime. There was some suggestion in cross examination that Mr. Harrison was generally hostile towards Dr.

Nawrot but this is notsupported by the evidence. Mr. Harrison also thought the work performed on March 12 was excessively long but he did not attendangrily at the office that day. Mr. Harrison explained how he had a congenial relationship with Dr. Nawrot going in to the dentaltreatments, including a friendly and frank conversation about Dr. Nawrot’s previous discipline from the College. [35] If Mr. Harrison’s conduct can be considered rude to Dr. Nawrot or the staff on March 18, in my view this is entirely reasonablegiven that his wife was at the clinic for over eight hours to get three fillings fixed.

The fact that he did not end up phoning police as hecontemplated, showed some restraint. The lack of information flowing to Mr. Harrison about his wife, despite his increasingly franticinquiries, is also consistent with Ms. Harrison’s evidence that the work being done by Dr. Nawrot on March 18 was unplanned andunauthorized. [36] There is no reliable evidence contradicting Ms. Harrison’s evidence that she did not consent to any dental work beyond the threeteeth she expected Dr. Nawrot to fix. Counsel for the Defendant put a document to Ms. Harrison suggesting that she consented to thework in question.

The “Dental Treatment with Oral Sedation Consent” (entered as Exhibit 5) has handwritten entries of 21 fillings, but itwas not authenticated or adopted by any witness. Nor was there any direct evidence that Ms. Harrison actually signed or understood theterms that appear on this document. Ms. Harrison agreed that the document bears her signature, however she maintains that thedocument she signed related to three teeth leaving her to speculate about the integrity of the document Defendant’s counsel tendered. [37] The suggestion that Dr.

Nawrot did obtain consent for the procedures he performed has no basis in the trial evidence. Dr.Nawrot did not testify. Nor did anyone from his clinic. Dr. Nawrot has admitted to failing to keep adequate records regarding informedconsent for the work performed on Ms. Harrison. Nothing in the documents tendered makes clear that Ms. Harrison consented to having22 teeth fixed in one sitting. [38] I find Ms. Harrison has established the torts of assault and battery on a balance of probabilities. Any touching of Ms. Harrisonthat went beyond the three teeth she agreed to have fixed on March 18 was non-consensual.

That the dental work involved touching Ms.Harrison is an inference easily drawn from the evidence. Force to a person is made lawful by consent in such matters as surgicaloperations or other medical treatments. Patients have the decisive role in the medical decision-making process. Their right of self-determination is recognized and protected by the law. The onus was on Dr. Nawrot to obtain consent from Ms. Harrison for the fullextent of the work performed before she was sedated and before the dental work began. I am satisfied that Dr. Nawrot did not obtain thisconsent. [39] Dr.

Nawrot argues that expert evidence is required for this court to determine whether Ms. Harrison gave valid informed consentto the scope of the work he performed. I cannot accede to this submission. This is not a situation where the court has to decide whetherMs. Harrison has established Dr. Nawrot was negligent for failing to fully disclose the risks of the treatment, as in Reibl v. Hughes (SCC), [1980] 2 S.C.R. 880. While it seems Dr. Nawrot has admitted to negligence in acknowledging that such extensivetreatments ran contrary to his professional standards, Ms.

Harrison did not claim that she would not have proceeded with the treatment ifshe had known there were risks to such a lengthy treatment. Ms. Harrison’s evidence is that, with the exception of three teeth, she did notconsent to the treatment at all. [40] On the evidence I accept, Dr. Nawrot simply proceeded to work on 19 of Ms. Harrison’s teeth without her knowledge, let aloneher consent. As such, the burden is on the Defendant to prove he had secured Ms. Harrison’s valid consent to the basic nature of themedical procedure being undertaken. There is nothing in the evidence to support the finding that Ms.

Harrison gave such consent, or

even that it was implied. [ 41 ] Dr. Nawrot cannot resist this claim by relying on the fact that Ms. Harrison may have agreed to having all 22 of her teeth fixed during subsequent shorter appointments. I am satisfied that the basic nature of the treatment administered was different than that to which Ms. Harrison consented. It is not enough for Dr. Nawrot to argue that she had already consented to three teeth, or that the future plan was to work on all 22 teeth. Fixing all 22 teeth at once was not only the kind of extensive treatment done in one session that Dr.

Nawrot has admitted was negligent, it was a fundamentally different procedure for Ms. Harrison – even though the type of work was generally the same as that to which she had indeed consented. [ 42 ] On the basis of the evidence that I accept, I find Ms. Harrison has established the torts of assault and battery. [ 43 ] Ms. Harrison also expressed a lingering and substantial fear that her bodily integrity was violated in ways beyond the unauthorized dental work while she was sedated.

When her husband was locked out of the dental clinic he waited in the mall parking lot watching as the clinic staff he had been dealing with multiple times that day, left the building. It was more than eight hours after Ms. Harrison had been dropped off at the clinic that Dr. Nawrot brought Ms. Harrison out of the mall in a wheelchair, still heavily under the influence of sedation. Mr. Harrison believed Dr. Nawrot was the only one left in the clinic with his wife. He was enraged by the time she was finally released. Ms.

Harrison’s own fears about what happened to her flow from the fact that she feels quite certain she was left alone with Dr. Nawrot while under sedation, and that at one point she recalls inexplicably being moved to another room in the clinic. Under cross examination Ms. Harrison acknowledged that she could not actually prove that she had been alone with Dr. Nawrot. [ 44 ] Counsel for Dr. Nawrot correctly notes that Mr. Harrison’s video shows another person assisting with the door as Dr. Nawrot wheeled Ms. Harrison out of the mall. Mr.

Harrison says he believed that person to be the mall security guard, which would be consistent with the clinic notes indicating that other staff members in Dr. Nawrot’s office had called security to escort them out. Mr. Harrison was candid in admitting that he could not say with certainty the person in the video was not Dr. Letnik, who Ms. Harrison was told had administered her sedation at the very beginning of her procedure. Without any defence evidence, the suggestion that the other person in the video was another dentist or clinic staff member is speculative at best. The evidence of Mr. and Ms.

Harrison about her being alone in the care of Dr. Nawrot is compelling and highly concerning, but it is not sufficient to support a legal finding that Dr. Nawrot caused her harm while she was under sedation. The extent of the assault and battery claims must be limited to the unauthorized dental work that Dr. Nawrot performed on Ms. Harrison. [ 45 ] Nevertheless, Ms. Harrison’s fears about her vulnerability while under sedation are acutely relevant to the extent of the harm she suffered from the unauthorized work.

As a direct result of being kept for so long in the office under sedation in order to perform unauthorized dental procedures, I find that Ms. Harrison experienced serious and prolonged emotional suffering that persists to the present day. She was overcome by these emotions several times when the evidence touched on the amount of time she spent in Dr. Nawrot’s care that she cannot recall due to the sedation. Ms. Harrison’s emotional reaction to having been sedated and retained in Dr.

Nawrot’s office for hours longer than she had expected or agreed is a foreseeable outcome to the Defendant’s high-handed abuse of his position of trust and power over Ms. Harrison, regardless of whether or not he was actually alone with her in the clinic. I will return to this point when I consider appropriate damages. Damages [ 46 ] Damages can compensate Claimants for financial losses, such as changes in their ability to work or costs related to their injuries.

Damages can also compensate Claimants for their emotional suffering and loss of enjoyment of life caused by the Defendant’s actions. [ 47 ] The primary harm established at trial that I have found attributable to Dr. Nawrot’s misconduct is Ms. Harrison’s emotional suffering and loss of enjoyment of life. Ms. Harrison described how for more than two years she has had nightmares, emotional stress and elevated anxiety due to what happened to her on March 18. She is now afraid to undergo sedation and has had to have subsequent dental work done without it. I accept her evidence in this regard. Ms.

Harrison says it was everything about her experience with Dr. Nawrot that caused her so much stress. But when she discussed her nightmares and anxiety in particular, Ms. Harrison focused on the events of March 18, and in particular her vulnerable state while under sedation for so long. Ms. Harrison is candid that she does not know for sure whether she was ever left alone with Dr. Nawrot, but she is haunted by this possibility and by the strange memory that she was at one point moved from the chair where the procedure was performed to another room in the clinic. [ 48 ] I find the harms described by Ms.

Harrison flowing from the March 18 appointment are reasonable and foreseeable consequences of a medical professional performing unauthorized and negligently extensive procedures on a sedated patient who cannot recall or respond to what was happening in the moment. Had Dr. Nawrot only fixed three fillings as agreed upon, Ms. Harrison would not have suffered in these ways. [ 49 ] I find it is both the assault/battery and Dr. Nawrot’s negligence in performing such extensive work in one session that were the primary causes of Ms.

Harrison’s emotional harm and the loss of enjoyment of life flowing from that emotional harm. I cannot accede to the Defendant’s submission that Dr. Letnik, who apparently administered Ms. Harrison’s sedative, is the one who should have been named as the Defendant. That may have been the case if Ms. Harrison had called the kind of evidence necessary to prove she was “over- sedated” as she believes. However, the basis on which her claim has succeeded is based solely on the misconduct of Dr. Nawrot. [ 50 ] Counsel suggested in cross examination that Ms.

Harrison’s emotional suffering was attributable to a variety of sources, including her pre-existing anxiety and her stress about representing herself at trial. Ms. Harrison agreed that she does tend to be an anxious person, however she also testified that her doctor “put her on medication” in order to treat the anxiety she experienced after her appointments with Dr. Nawrot. That leads me to conclude the actions of Dr. Nawrot did elevate the degree of her anxiety to the point that she required medical intervention. [ 51 ] In making determinations about the causes of Ms.

Harrison’s emotional suffering I have considered that she also described a great deal of hardship resulting from having the work Dr. Nawrot did on March 12 re-done by her new dentist. I have not made findings of liability with respect to the work Dr. Nawrot did on March 12. However Ms. Harrison differentiated between the hardships flowing from her bridge work and the emotional disturbances she suffered specifically as a result of her treatment on March 18.

[ 52 ] The kind of harm suffered by Ms. Harrison is compensable. Saadati v. Moorhead 2017 SCC 28 establishes that the claimant does not need to pair their mental injury to a “recognized psychiatric illness” in order to be compensated for a tort. To establish a mental injury, a claimant is required to show a requisite degree of disturbance.

The threshold degree of disturbance is not measured by its classification as a recognized psychiatric illness, but rather that the disturbance suffered by the claimant is: […] “serious and prolonged and rise[s] above the ordinary annoyances, anxieties and fears that come with living in civil society.” ( Saadati v. Moorhead at para 37 , citing Mustapha v. Culligan of Canada Ltd ., 2008 SCC 27 .) [ 53 ] I am satisfied that Ms. Harrison established a compensable degree of emotional suffering as a result of Dr. Nawrot’s misconduct. I find Ms.

Harrison has established significant and long lasting emotional harm from unauthorized and negligent work Dr. Nawrot performed on March 18. More than two years later, Ms. Harrison is shaken when she describes her experience. I am satisfied that the kind of fears Ms. Harrison continues to harbour are a result of having been under sedation in Dr. Nawrot’s care for hours longer than she expected and also having discovered that he performed procedures without her express consent. [ 54 ] To be clear, I am not finding that the process of sedation was negligent, but rather that Ms.

Harrison would not have been sedated for so long but for the unauthorized and negligent dental work. Ms. Harrison’s fear and feelings of violation were manifest at trial and throughout her evidence. Ms. Harrison trusted Dr. Nawrot as a medical professional and she put herself in his hands to receive competent care. In my view her emotional harm is a foreseeable and avoidable result of Dr.

Nawrot deciding what work would be done, without ensuring he had the consent of his patient or considering whether the extent of that work was consistent with his professional expectations. [ 55 ] Counsel have also made submissions regarding Ms. Harrison’s failure to mitigate her losses. However there is evidence that she was treated by her family physician for anxiety and stress. I do not find the damages owing to Ms. Harrison should be reduced for any failure to mitigate. [ 56 ] Quantifying the type of harm suffered by Ms.

Harrison is difficult, but I am guided in this exercise by cases where plaintiffs have suffered similar harm, even if it was caused by a different type of wrongdoing. In Johnston v. Day , 2002 BCSC 480 , the Plaintiff was a child who suffered sleep disruptions for an extended period of time after a motor vehicle collision caused by the Defendant. The child also became afraid of riding in vehicles. The court awarded $8,000 in damages for this suffering [1] . This harm is not dissimilar to what was suffered by Ms. Harrison. The child in Johnston v.

Day suffered minor soft tissue injuries that had substantially resolved within a few months. I also note the torts committed against Ms. Harrison were more aggravated than in Johnston v. Day , given that Dr. Nawrot breached his position of trust as a medical professional. [ 57 ] In Boase v Paul , [1930] O.J. No. 38 , the Defendant dentist removed 11 of the Plaintiff’s teeth without his consent. As in the case at bar, the procedure did not cause any real injury to the plaintiff’s physical health. His teeth were diseased and would likely have needed to be removed at some point.

The Court ruled that if damages were awarded they would be $800 to compensate the plaintiff for pain and suffering, as well as expenses for plates and false teeth [2] . While the unauthorized procedures were more invasive than in the case at bar and the plaintiff did not want his teeth removed at all, the work done by Dr. Paul was done well, and not negligently as in the case at bar. Also in Boase v. Paul the Court found the unauthorized work was done because of an honest miscommunication between patient and dentist. This is distinguishable from the present case, where there is no direct evidence about why Dr.

Nawrot performed the unauthorized work. [ 58 ] Considering these cases, I find that a total award of $13,000 is appropriate to address non-pecuniary damages flowing from both the assault/battery and negligence in this case. The harm flowing from both torts is the same emotional suffering that cannot easily be considered independent of each other. I order $10,000 in general damages, of which $2,000 is apportioned to the negligent conduct in performing extensive treatments in one session and $8,000 for assault/battery. I find that the assault/battery was aggravated by Dr.

Nawrot breaching his position of trust and I award an additional $3,000 in aggravated damages. [ 59 ] Dr. Nawrot may not have intended to cause Ms. Harrison harm, but he acted in a high-handed and reprehensible manner towards a patient who was vulnerable due to sedation and relying entirely on his expertise and integrity. The affront to her dignity was obvious in the course of this trial. While punitive damages could be considered to address Dr. Nawrot’s misconduct, I am satisfied given the College complaint that any deterrent measures are best left to the College.

They are in the best position to appreciate the full extent of his transgressions. [ 60 ] Ms. Harrison has established limited financial loss as a result of the unauthorized and negligent work done by Dr. Nawrot on March 18. Ms. Harrison did testify that she was unable to work for a short period of time after March 18, however it is unclear whether her inability to work resulted from the removal of excess tooth structure, the unauthorized dental work, or for some other reason unrelated to the torts established in this case. [ 61 ] Ms.

Harrison’s elevated degree of stress also led her to miss a month and a half of work before trial. Ms. Harrison’s evidence was not entirely clear regarding the reasons for her elevated stress. She agreed in cross examination that the College complaint and upcoming litigation were part of it. However, she clarified that it also included the disturbing dreams flowing from the March 18 incident. It is reasonable to infer that the prospect of recounting her experiences and seeing Dr. Nawrot in court would exacerbate the symptoms caused by the March 18 misconduct. [ 62 ] While Ms.

Harrison did not give an exact accounting of the financial loss she suffered from the six week absence from work, her evidence leads me to find she did incur financial losses, despite her failing to bring the supporting documents to court. Ms. Harrison testified that she generally works 40 hours per week at $28.50. Based on a rough estimate of $7,125 for the six lost weeks of wages, I am prepared to award Ms. Harrison a third of that amount, given that there were other contributors to the stress she experienced leading up to trial. I find $2,375 is appropriate to compensate Ms.

Harrison for financial losses due to her absence from employment. [ 63 ] Ms. Harrison is also entitled to filing and service fees. [ 64 ] In

summary, I order Dr. Nawrot to pay Ms. Harrison a total of $15,551, apportioned as follows:

a) General damages of $10,000

b) Aggravated damages of $3,000

c) Loss of income of $2,375

d) Filing fees of $156; and

e) Service fees of $20 _____________________________ The Honourable Judge A. Ormiston Provincial Court of British Columbia